Your (Vanishing) “Day in Court”

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3 Responses

  1. A.J. Sutter says:

    Thanks for the post. I’m more with the alarmists, and had been wondering why it was taking so long for this blog to notice this decision.

    I’m not sure your statement about there being nothing inherently bad about arbitration of employee or consumer disputes really captures what’s at stake. One issue is uneven bargaining power. Here, the result is to deprive consumers, employees, medical patients and others of due process in a very literal sense. Another issue is the disconnect from the democratic process. In a court, laws matter, and laws (in theory, at any rate) are made by democratically-elected representatives, and construed by judges who are either elected directly or who are appointed by the political branches of government. In arbitration, on the other hand, the law is not necessarily controlling.

    The fact that you highlight the efficiency of arbitration in terms of time and money makes the point well: economic values have displaced political ones. I hope Congress acts swiftly to negate the effects of the Rent-A-Center decision.

  2. Jim Maloney says:

    I don’t know think I’d consider myself an alarmist; perhaps more of an “alarmed analyst.” My analysis goes something like this: recognizing the existence an overwhelmed federal docket, the Court engages in palliative measures, such as forum-shifting decisions like Jackson, which follows a long line of cases “favoring” arbitration, and, as an alternate “remedy,” cases like Twombly and Iqbal, which overturned the long-accepted liberal pleading standards articulated in Conley, allowing federal district judges to clear their dockets of many cases in which the pleadings were not as well drafted as they might have been. The problem with these “remedies” is that, by and large, they simply don’t serve justice, but rather do a disservice to that ideal, although they probably do succeed in stemming the tide of docket flooding a bit. As for some of the lower courts’ decisions approving arbitration in disservice of justice, this recent case from the Second Circuit, a 2-1 decision with a welcome dissent by Guido Calabresi, ought to give pause to all but the most callous.

  3. ParatrooperJJ says:

    Sounds like basic contract law to me. If you don’t like the terms, don’t sign the contract.